Smith v. Community Loans of America, Inc. et al

Filing
36

Order granting 32 Amended MOTION to Approve Settlement Agreement, 35 Notice and 30 Joint MOTION to Approve Settlement Agreement such that the FLSA Settlement is approved. Plaintiff Kelly M. Smith is due to be paid a total of $27,500 as set out. This matter is dismissed with prejudice. Signed by Judge Kristi K. DuBose on 1/30/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KELLY M. SMITH,
Plaintiff,
v.
COMMUNITY LOANS OF AMERICA,
INC., et al.,
Defendants.
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CIVIL ACTION NO.: 12-00187-KD-B
ORDER
This matter is before the Court the parties’ “Joint Motion to Approve Settlement
Agreement” (Doc. 30), “Joint Motion to Approve Amended Settlement Agreement” (Doc. 32)
and Amended Settlement Agreement (Doc. 35). Upon consideration and for the reasons set forth
herein, it is ORDERED that the parties’ “Joint Motion to Approve Settlement Agreement” (Doc.
30) and “Joint Motion to Approve Amended Settlement Agreement” (Doc. 32) and request for
attorneys’ fees and costs included therein is GRANTED. Therefore, the amended settlement
agreement (Doc. 35) is APPROVED as a fair and reasonable resolution of a bona fide dispute
over Fair Labor Standards Act provisions. It is further ORDERED that Plaintiff Kelly M.
Smith is due to be paid a total of $27,500.00 as follows: 1) $4,287.42 for her unpaid wages; 2)
$4,287.42 for liquidated damages); 3) $425.16 for her breach of contract claims; and 4)
$18,500.00 in attorneys’ fees and costs. (Id.) Accordingly, this matter is DISMISSED WITH
PREJUDICE.
The Court does not retain jurisdiction to enforce the settlement agreement. Entry of a
Final Judgment, as required by Lynn’s Food Stores, Inc. v. United States of America, 679 F.2d
1350 (11th Cir. 1982) shall be entered by separate document.
1
I.
Background
Plaintiff Kelly M. Smith (“Plaintiff”) initiated this action against Defendants Community
Loans of America, Inc., U.S. Title Loans, Inc., Alabama Title Loans, Inc. and Jodi Ward
(“Defendants”) for violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §
201 et seq., (“the FLSA”) alleging three (3) claims against the Defendant for: 1) willful,
knowledgeable and intentional violations of the FLSA’s overtime, straight time and record
keeping requirements; 2) breach of express and implied contracts of employment; and 3) a
declaration that the Defendants violated the FLSA and Plaintiff is a non-exempt employee of
Defendants who is entitled to receive overtime compensation under the FLSA.
(Doc. 1).
Plaintiff sought relief including compensatory damages, statutory liquidated damages,
prejudgment interest, equitable relief, attorney’s fees, expert costs and court costs. (Id.)
The parties reached a settlement of Plaintiff’s claims and jointly moved for approval of
the settlement (a copy of which was attached to the original motion). (Doc. 30). In so doing, the
parties jointly submitted the following as the agreed upon factual record in this case:
This action was brought by Kelly M. Smith, a non-exempt employee of Defendant
Alabama Title Loans, Inc. Plaintiff contends that she regularly worked in excess of forty
hours per week and that she was not properly compensated for all such time worked.
(Doc. 1). More specifically, Plaintiff alleges that Defendants failed to compensate her for
time she alleges to have worked to complete certain “bank runs.” Plaintiff also claims to
have worked overtime hours each week that she was prevented from submitting to her
employer for compensation. Id. Defendants dispute that Plaintiff performed any work for
which she was not properly compensated and deny that Plaintiff worked the hours she
alleges. Further, Defendants have denied all liability herein and dispute Plaintiff’s claims.
Plaintiff has, with assistance of counsel, estimated the amount of unpaid wages she is
due. Plaintiff’s initial overtime wages claimed were $9,365.40 plus an additional equal
amount in statutory liquidated damages. This initial damages estimate was based solely
upon Plaintiff’s recollection, and was made before the production of any records by
Defendants. Due to the nature of the time for which wages are claimed, there are no
records that show with precision the amount of allegedly unpaid work. However, after
2
reviewing certain documents produced by Defendants, including timesheets and leave
request forms, Plaintiff reduced her damages estimate. Plaintiff’s revised damages
estimate, which represents all amounts she would seek to recover at trial on her FLSA
claims, is $6,486.44, plus an additional equal amount in statutory liquidated damages.
Plaintiff’s revised damage estimate for her FLSA claim was calculated as follows:
A. Overtime Wages:
i. Off-the-Clock Overtime
a. March 14, 2009 to July 24, 2009:
19 weeks x 2 hours per week x $30.00 per hour = $1,140.00
b. June 25, 2009 to Dec. 31, 2009:
27 weeks x 2 hours per week x $31.20 per hour = $1,684.80
ii. Bank Runs
a. Mar. 14, 2009 to July 24, 2009:
19 weeks x 1 hours per week x $30.00 per hour = $570
b. July 25, 2009 to June 26, 2010:
48 weeks x 1 hours per week x $31.20 per hour = $1,497.60
c. June 27, 2010 to July 9, 2011:
54 weeks x 1 hours per week x $32.46 per hour = $1,752.84
d. July 10, 2011 to Oct. 1, 2011:
12 weeks x 1 hours per week x $33.77 per hour = $405.24
iii. Total Overtime Wages Reduced by Vacation Time
$7,050.48 x .92 (represents 48 weeks out of 52-week year) = $6,486.44
B. Liquidated Damages:
TOTAL FLSA CLAIM:
$6,486.44
$12,972.88
Plaintiff also sought attorneys’ fees pursuant to the mandatory fee-shifting provision in
the FLSA. 29 U.S.C. § 216(b). Defendants have denied that the Plaintiff performed work
for the benefit of the Defendants for which Plaintiff was not compensated….
***
After arms-length negotiations occurring during and after the Parties exchanged
documents and participated in some discovery, the Parties reached an agreement in which
both sides compromised their positions. Due to the uncertainties of litigation, disputed
facts between the Parties (including which statute of limitations is applicable1 and amount
of hours worked), the difficulty in Plaintiff proving hours worked, Defendants’ potential
“gap time” defenses, and the benefit to both Parties in avoiding trial and extensive
additional discovery such as depositions, the Parties have agreed to settle the matter with
the Defendant to pay a compromised amount of unpaid overtime wages calculated as
3
described below.
1
A substantial portion of the damages claimed by Plaintiff relate to time allegedly
worked before March 14, 2010, i.e., more than two years before the Complaint in this case was
filed. To recover these damages at trial, the Plaintiff would be required to prove that the
Defendant’s alleged violation of the FLSA was willful. See 29 U.S.C. § 255(a); Alvarez Perez v.
Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162-63 (11th Cir. 2008).
(Doc. 30 at 1-5).
Pursuant to the parties’ assertions (Doc. 30 at 5 and Doc. 32 at 3-4), Plaintiff will receive
$9,000.00 as follows: 1) $4,287.42 for Plaintiff’s unpaid wage claims; 2) $4,287.42 for
liquidated damages (as an equal amount of Plaintiff’s unpaid wage claims); 3) $425.16 for
breach of contract claims. In addition, Plaintiff shall receive $18,500.00 in attorneys’ fees and
costs. (Id.) These asserted amounts total $27,500.00. (Id.)
Upon review of the parties’ original submissions, the Court ordered additional briefing
(Doc. 31) because the submitted amounts did not match the actual terms of the original
settlement agreement, which provided that Plaintiff will receive $27,574.84 as follows: 1)
$4,787.42 for Plaintiff’s unpaid wage claims and breach of contract claims; 2) $4,287.42 for
liquidated damages; and 3) $18,500.00 in attorney’s fees and costs (Doc. 30-1 at 2 at ¶2). Also,
the Court ordered further briefing (Doc. 31) because the $4,763.80 amount set forth in the
motion as to Plaintiff’s total overtime wages (off-the-clock overtime of $982.80 plus banks runs
of $1,407.12, $1,928.12 and $445.76) (Doc. 30 at 4) does not match the unpaid wages total
which the parties specified in the original settlement agreement, $4,287.42, and there was no
explanation for this discrepancy (which would then also change the amount of liquidated
damages and the overall total amount). Moreover, the Court concluded that the parties’ proposed
settlement agreement contained prohibitive terms: a confidentiality clause and a pervasive
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release. (Doc. 31 at 8-12). Further, the Court found that it could not approve the $18,500.00 in
attorneys’ fees and costs because Plaintiff’s counsel failed to provide the Court with sufficient
information for a lodestar analysis, as well as to establish that the fees/costs were negotiated
separately from Plaintiff’s FLSA claims. (Doc. 31 at 12-13).
The parties were granted leave to file an amended settlement agreement as well as
supplemental briefing in order to clarify the discrepancies noted as well as to address the Court’s
concerns. (Doc. 31 at 13-14). As the parties have now filed an amended settlement agreement
(Doc. 35) and supplemental briefing, the matter is ripe for review.
Notably, in the parties’ present motion to approve the amended settlement agreement,
they assert as follows:
The Settlement Agreement calls for a total settlement of $9,000.00 in wage claims and
$18,000.00 in attorneys’ fees, plus costs of $500.00. The wages represented by the
settlement were calculated as follows:
A. Overtime Wages:
i. Off-the-Clock Overtime
a. September 14, 2009 to Dec. 31, 2009:
15 weeks x 2.1 hours per week x $31.20 per hour = $982.80
ii. Bank Runs
a. September 14, 2009 to June 26, 2010:
41 weeks x 1.1 hours per week x $31.20 per hour = $1,407.12
b. June 27, 2010 to July 9, 2011:
54 weeks x 1.1 hours per week x $32.46 per hour = $1,928.12
c. July 10, 2011 to Oct. 1, 2011:
12 weeks x 1.1 hours per week x $33.77 per hour = $445.76
Subtotal Overtime Wages (off-the-clock plus bank runs)
$4,763.00
Factor representing portion of year worked:4
0.9
4
In their initial Joint Motion, the parties failed to include an important element of how
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the wages paid in the settlement agreement were calculated. In arriving at the compromise wage
payment, Smith’s estimated unpaid hours were multiplied by 0.9 to reflect the undisputed fact
that Smith did not work for approximately 10% of the calendar year due to vacation time and
other leave.
Total Overtime Wages:
$4,287.42
B. Liquidated Damages:
$4,287.42
C. Breach of Contract claims and general release
$425.16
Total Payment to Plaintiff:
$9,000.00
(Doc. 32 at 3-4).
Additionally, the parties assert that they negotiated separately as to the Plaintiff’s FSLA
claims, from the consideration of attorneys’ fees for Plaintiff’s counsel, such that Plaintiff’s
recovery will not be reduced by any portion of the attorneys’ fees or costs in this case. (Doc. 30
at 5; Doc. 32 at 4-5). Moreover, the parties jointly agree and propose to the Court that this is a
fair and reasonable resolution of a bona fide dispute of the FLSA provisions, as the amount of
wages to be paid to Plaintiff represents all amounts that she would be entitled to recover if the 2year statute of limitations were held to apply, “plus about half of what she would be entitled to
recover for the time allegedly worked before March 14, 2010.” (Doc. 30 at 1; Doc. 32 at 5).
Further, the parties agree and propose that while this case constituted a bona fide dispute over
FLSA provisions (whether Plaintiff performed overtime work for which she was not paid, was
compensated for time she alleges to have worked at the end of every working day to complete
“bank runs,” the number of overtime hours she worked for which she was not paid, if any, and
the amount of any back pay owed), both sides compromised their positions. (Doc. 30 at 3-4, 6;
Doc. 32 at 5). Finally, the amounts set forth in the parties’ amended settlement agreement (Doc.
35) now match the amounts set forth in the parties’ revised pleadings (Doc. 32 at 3-4) confirming
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that Plaintiff will receive a total of $27,500.00 as follows: 1) $8,574.84 for Plaintiff’s unpaid
wage claims (per footnote 1 in the settlement agreement, $4,287.42 for her unpaid wages and an
equal amount in liquidated damages); 2) $425.16 for Plaintiff’s breach of contract claims; and 3)
$18,500.00 in attorneys’ fees and costs. (Id.)
II.
Discussion
This is an FLSA case and the Court must determine whether the settlement is a “fair and
reasonable resolution of a bona fide dispute” of the claims raised pursuant to the FLSA in order
to approve the settlement.1 See, e.g., Lynn’s Food Stores, 679 F.2d 1350.
For those reasons set forth in the Court’s prior Order (Doc. 31 at 7-8), the Court again
restates its prior ruling that: 1) there is a “bona fide dispute” as to whether unpaid wages are
owed to Plaintiff; and 2) the parties’ compromise appears to reflect a fair and reasonable
settlement of Plaintiff’s FLSA claim. Concerning the remaining issues upon which this Court’s
approval of the parties’ settlement agreement depends – the discrepancies in the amounts in the
settlement agreement, the presence of the confidentiality clause and pervasive release in the
settlement, and the matter of attorneys’ fees and costs – the parties have supplemented their
filings and amended the settlement agreement, and the Court finds as follows.
A.
Discrepancies in Amounts
Upon review of the parties’ revised pleadings and the amended settlement agreement, the
Court is satisfied that the amounts asserted now match the amounts set forth in the amended
agreement such that the necessary corrections have been made to the relevant calculations.
1
See, e.g., Silva v. Miller, 307 Fed. Appx. 349 (11th Cir. 2009); Lynn's Food Store, Inc. v. United
States, 679 F.2d 1350, 1354-1355 (11th Cir. 1982). See also e.g., Robert L. Dunagan v. ABBC, Inc., CV
11-280-KD-C (Docs. 22, 28); Jimmy Salter v. Carlous L. King, et al., CV 11-464-KD-M (Docs. 10, 11).
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B.
Scope and Terms of the Settlement Agreement
The parties have revised the terms of the settlement agreement such that the prohibitive
provisions in the original agreement -- a confidentiality provision and a pervasive release -- have
been removed. (Doc. 35). As such, the Court finds the terms of the amended settlement
agreement to be appropriate for this FLSA case. Thus, the Court APPROVES the parties’
amended settlement agreement (Doc. 35).
C.
Attorney’s Fees & Costs
The FLSA requires that the “court in such action shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the
defendant, and costs of the action.” 29 U.S.C. § 216(b). Although Plaintiff and counsel agree
that the fees and costs are reasonable, that does not exonerate the Court from its duty to
determine the reasonable fees and costs. Silva v. Miller, 307 Fed. Appx. 349 (11th Cir. 2009).
Plaintiff’s counsel originally submitted an Affidavit (Doc. 30-2 at 1-3) and billing records
for 115.5 hours of legal services performed by four (4) individuals for a total of $21,201.20 in
fees/costs (Doc. 30-2 at 4-21), in addition to asserting that “the parties negotiated an agreement
as to the Plaintiff’s recovery separately from the consideration of the fees of plaintiff’s counsel.”
(Doc. 30 at 5). This original submission has been supplement by an additional Affidavit and
billing records (Doc. 32-2). The Court’s concern with the original submission was that Plaintiff’s
counsel had not provided the Court with sufficient information for a lodestar analysis and the
record appeared to contradict his representation that the settlement of Plaintiff’s FLSA claims
were negotiated separately from counsel’s fees, expenses and costs to avoid any taint in the
agreement.
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At the outset, with regard to whether the attorneys’ fees/expenses matter was negotiated
separately from Plaintiff’s FLSA recovery, the Court is satisfied that such is the case. Plaintiff’s
counsel asserts that he insisted during negotiations that the matter of Plaintiff’s recovery be
negotiated separately from the matter of attorneys’ fees. (Doc. 32 at 4-5).
The Court now turns to the specifics of the attorneys’ fees and costs/expenses request.
In FLSA actions, the Court relies on the lodestar method for determining the
reasonableness of the fees sought. Silva, 307 Fed. Appx. 349 (the “FLSA requires judicial
review of the reasonableness of counsel’s legal fees to assure both that counsel is compensated
adequately and that no conflict of interest taints the amount the wronged employee recovers
under a settlement agreement[]”).
See also generally Norman v. Alorica, Inc., 2012 WL
5452196 (S.D. Ala. Nov. 7, 2012); Wolff v. Royal American Mgt., Inc., 2012 WL 5303665 (S.D.
Ala. Oct. 25, 2012). In order to determine the reasonableness of the attorney’s fees requested,
the Court employs the lodestar analysis: the number of hours reasonably expended multiplied by
a reasonable hourly rate for similar legal services. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149-1150 (11th Cir.
1993). “Adjustments to that fee then may be made as necessary in the particular case.” Blum v.
Stenson, 465 U.S. 886, 888 (1984). Redundant, excessive, or otherwise unnecessary hours
should not be included in the calculation of hours reasonably expended. Hensley, 461 U.S. at
434. Even when a party prevails, the district court still must determine whether time was
reasonably expended, and if it was not, that time should be excluded from the fee calculation. Id.
While the “lodestar” method effectively replaced the balancing test previously prescribed by
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), the 12
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Johnson factors2 “might still be considered in terms of their influence on the lodestar amount.”
Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292 (11th Cir. 1988).
Plaintiff bears the burden of documenting and proving reasonable hours expended and
reasonable hourly rates. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). Plaintiff must
also supply detailed evidence of the hourly rates and time expended so that this Court may
properly assess the time claimed for each activity. Id. “When a district court finds the number
of hours claimed is unreasonably high, the court has two choices: it may conduct an hour-byhour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins v. Wrap
it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
Plaintiff’s counsel seeks a total recovery of $18,500.00 ($18,000.00 in attorneys’ fees
and $500.00 in expenses). (Doc. 30; Doc. 32). The basis for Plaintiff’s entitlement to such fees
and expenses is the parties’ settlement agreement. Additionally, in support, Plaintiff’s counsel
supplemented his prior motion, his Affidavit, and his law firm’s billing records, as well as
addresses the lodestar figure and reasonableness of such fees and costs (Doc. 32; Doc. 32-2).
Plaintiff’s counsel adds that the “agreed-upon fee” (as agreed between the parties) – which
differs from the amount and hours billed -- is “within the range of reasonable fees that the Court
could, in the exercise of its discretion, award in this case.” (Doc. 32 at 7-8).
1.
Reasonable Rate
2
The factors are as follows: 1) the time and labor required; 2) the novelty and difficulty of the
questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other
employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is
fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount
involved and the results obtained; 9) the experience, reputation, and ability of the attorney; 10) the
“undesirability” of the case; 11) the nature and length of the professional relationship with the client; 12)
awards in similar cases. Johnson, 488 F.2d at 717-719.
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As the party requesting fees, Plaintiff has the burden of supplying the Court with specific
and detailed evidence from which the Court can determine the reasonable hourly rate for the
work performed. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)
(citing Norman, 836 F.2d at 1303). The Eleventh Circuit has instructed that a reasonable hourly
rate is “the prevailing market rate in the relevant legal community for similar services by lawyers
of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. In this
case, the relevant legal community is Mobile, Alabama. See Barnes, 168 F.3d at 437 (providing
that “the ‘relevant market’ for purposes of determining the reasonable hourly rate for an
attorney’s services is the place where the case is filed.” (citation omitted)).
Counsel requests the following hourly rates: $250/hour for B.Ladd; $250/hour for
M.C.Ladd; $225/hour for S.Vitello; and $150/hour for S.Booth. (Doc. 32 at 6). Counsel B.Ladd
asserts that he has been practicing 19 years; M.C.Ladd has been practicing 14 years; S.Vitello
has been practicing for more than 1 year; and S.Booth charged her time as a paralegal (although
she is a fourth-year associate). (Doc. 31 at 6; Doc. 32; Doc. 32-2 at 1-4 (Aff. B.Ladd)).
The Court recently determined $250/hour to be a reasonable rate for an attorney with 15
years of experience. See Vision Bank v. Anderson, 2011 WL 2142786, *3 (S.D. Ala. May 31,
2011). See also Mitchell Co., Inc. v. Campus, 2009 WL 2567889, *1 and *17-18 (S.D. Ala. Aug.
18, 2009) (finding that a reasonable hourly rate for an attorney with 12 years of experience was
$225/hour). Additionally, the undersigned and other judges in the Southern District of Alabama
have found $150/hour to be reasonable for attorneys with a few years of practice (associates).
See, e.g., Gulf Coast Asphalt Co., L.L.C v. Chevron U.S.A., Inc., 2011 WL 612737, *4 (S.D.
Ala. Feb. 11, 2011) (finding $145/hour to be a reasonable rate for second-year associate); Adams
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v. Austal, U.S.A., L.L.C., 2010 WL 2496396, *6 (S.D. Ala. Jun. 16, 2010) (finding $150/hour to
be a reasonable rate for third-year associate); Wachovia Bank, N.A. v. Horizon Wholesale
Foods, LLC, 2009 WL 4750358, *4 (S.D. Ala. Dec. 8, 2009) (finding that a $150/hour rate is
appropriate for an attorney with 1-2 years experience). Thus, the requested hourly rates for
B.Ladd ($250/hour), M.C.Ladd ($225/hour), and S.Vitello ($150/hour), given their years of
experience, are reasonable.
As to the paralegal rate of $100/hour requested for S.Booth, the Court finds as reasonable
the requested rate. In several recent cases, this Court has found $75/hour to be a reasonable rate
for paralegal work. See, e.g., Denny Mfg., 2011 WL 2180358, at *5; Zuffa, LLC v. Al-Shaikh,
2011 WL 1539878, at *9 (S.D. Ala. Apr. 21, 2011); Wells Fargo Bank, N.A. v. Williamson,
2011 WL 382799, at *5 (S.D. Ala. Feb. 3, 2011). However, Plaintiff’s counsel has stated that
this “paralegal” is actually a fourth-year associate who simply chose to bill her time as “paralegal
work.” (Doc. 32 at 6-7 at footnote 5). Additionally, this Court, relying on its own expertise, has
found that $100/hour represents a reasonable hourly paralegal rate in the Southern District of
Alabama.
See, e.g., Wachovia Bank, N.A. v. Horizon Wholesale Foods, LLC, 2009 WL
4750358, *4; Mitchell Co. Inc., 2009 WL 2567889, *19.
Thus, the Court finds that the
$100/hour rate requested for S.Booth is reasonable.
2.
Reasonable Hours Expended
In determining whether the number of hours expended are reasonable, the Court should
not include any hours which are “excessive, redundant, or otherwise unnecessary.” Norman, 836
F.2d at 1301. When awarding an attorney’s fee, the “[c]ourts are not authorized to be generous
with the money of others, and it is as much the duty of courts to see that excessive fees and
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expenses are not awarded as it is to see that an adequate amount is awarded.” Barnes, 168 F.3d at
428. The Court will not permit a party to recover fees for hours that are excessive, redundant, or
unnecessary, i.e., hours “that would be unreasonable to bill to a client and therefore to one’s
adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at
1301 (emphasis omitted).
While there is no per se rule of proportionality, City of Riverside v. Rivera, 477 U.S. 561,
574 (1986), the Supreme Court has made clear that such could still be considered a factor in
determining the reasonableness of a fee request. “The amount of damages a plaintiff recovers is
certainly relevant to the amount of attorney's fees to be awarded under § 1988.... It is, however,
only one of many factors that a court should consider in calculating an award of attorney's fees.”
Id. (citation omitted). See also Wolff, 2012 WL 5303665, *4-5. “[I]n light of the disparity
between what [P]laintiff claimed and what her attorneys now seek for obtaining the recovery,
there is potential for the fee award to become a windfall for [P]laintiff's counsel. FLSA suits are
not meant to become a cottage industry divorced from the benefits they provide, and the fees
should not shade over from fair play into a punitive measure against defendants who challenge a
plaintiff's overtime claim in good faith. The court considers these factors in determining the
reduction to be applied to the fees requested in this action.” Id. at 5. See also e.g., Goss v.
Killian Oaks House of Learning, 248 F. Supp. 2d 1162, 1168 (S.D. Fla. 2003) (denying a
plaintiff’s motion for fees as counsel “seem[ed] to have leveraged a small sum as a steppingstone to a disproportionately large award of attorney’s fees” by seeking almost $16,000 for a
$315.89 FLSA claim).
Counsel represents that the individuals working on this case billed a total of 115.5 hours:
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B.Ladd -- 25 hours; M.C.Ladd –11.2 hours; S.Vitello -- 77.4 hours; and S.Booth – 1.9 hours.
(Doc. 32 at 7; Doc. 32-2). Plaintiff’s counsel compromised his fees insofar as he has reduced his
recovery from the amount billed, $20,570.00, to $18,000.00. (Doc. 32 at 7). In the original
motion, counsel agreed to reduce his hourly rate from $250/hour to a “blended” $200/hour rate,
as well as to reduce the total hours billed from 115.5 hours to 90 hours. (Doc. 31 (citing Doc. 30
at 6 and Doc. 30-1 at 3)). In his updated Affidavit, Plaintiff’s counsel has not specifically
proposed application of the formerly asserted “blended” rate of $200/hour but instead sets forth
each individual’s hourly rate asserting that each are appropriate given their respective years of
experience. (Doc. 32-2 at 2-4 (Aff. B.Ladd)). However, given the fees recovery claimed of
$18,000.00 (and because counsel has failed to address the reduction in his hours from 115.5
hours to 90 hours), it appears that counsel simply seeks equal application of the $200/hour
blended rate to all four (4) individuals who billed time on this case, but for only 90 hours.
As such, the Court finds that the 90 hours billed by B.Ladd, M.C.Ladd, S.Vitello and
S.Booth, at what appear to have been billed at an “agreed-upon” and “blended” hourly rate of
$200/hour, are reasonable and recoverable time such that attorneys’ fees shall be awarded in the
manner requested by the parties and per the terms of the settlement.
3.
Costs/Expenses
Plaintiff originally billed $631.20 in expenses for a court filing fee, certified mail,
photocopies, and a process server. (Doc. 32-2 at 22). Plaintiff now seeks to recover only
$500.00 in expenses. Defendant has agreed to these (reduced) costs/expenses. The Court finds
the claimed expenses of $500.00 to be reasonable and recoverable.
III.
Conclusion
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Therefore, for those reasons set forth herein, it is ORDERED that the parties’ “Joint
Motion to Approve Settlement Agreement” (Doc. 30) and “Joint Motion to Approve Amended
Settlement Agreement” (Doc. 32) with the amended settlement agreement (Doc. 35) – and
including Plaintiff’s counsel request for attorneys’ fees and costs -- is GRANTED such that the
FLSA Settlement is APPROVED. It is further ORDERED that Plaintiff Kelly M. Smith is due
to be paid a total of $27,500.00 as follows: 1) $4,287.42 for unpaid wages; 2) $4,287.42 for
liquidated damages); 3) $425.16 for her breach of contract claims; and 4) $18,500.00 in
attorneys’ fees and costs. (Id.) Accordingly, this matter is DISMISSED WITH PREJUDICE.
Final judgment as required by Lynn’s Food Stores, 679 F.2d 1350, shall be entered by
separate document.
DONE and ORDERED this the 30th day of January 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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